Power of Executing Court: Introduction, Explanation & Limitation

By | August 3, 2020
Power of Executing Court: Introduction

This article intends to explain the Power of the Executing Court. It starts with discussing which Courts have the authority to execute and moves on to explain the powers of the transferor court as well as the transferee court. Then comes the crux of the issue, which talks about the powers of the executing court through a series of judicial precedents. This is followed by an explanation of the Limitations that Executing Courts face, and then a brief description of certification and why it is necessary.

Introduction – Courts which can execute decrees

Courts which have the authority to execute decree are listed in Section 38 of the Civil Procedure Code 1908. Section 38 of the CPC dictates that a decree can be executed either by the Court of the first instance or by the Court to which the decree has been transferred. In the case of Muhammad v Tikamchand[1], it was held that a decree can be executed either by the court which has passed the decree or by the court to where it is sent for execution.

Section 37 of the Code states that the ambit of the term “court which passed a decree’’ with the aim of enabling a decree-holder to achieve fruition of the efforts they put in litigation. The courts which are included in the term ‘courts which passed a decree’ are as follows –

  1. The court of first instance;
  2. The court which actually passed the decree in case of appellate decrees;
  3. The court which has jurisdiction to try the suit at the time of execution, if the court of first instance ceased to exist;
  4. The court which at the time of execution had jurisdiction to try the suit, if the court of first instance has ceased to have jurisdiction to execute the decree.

It is important to note that the court of the first instance has the jurisdiction to execute a decree even if any area is getting transferred from the jurisdiction of said court to the jurisdiction of another court. In such a situation, the latter court (the court to which the jurisdiction of such area has been transferred), will also have the jurisdiction to execute such decree, if the said court had jurisdiction to try that suit when the application for execution was filed.

In the matter of Kasturi Rao v. Mehar Singh[2]. The court held that the definition for ‘courts which passed a decree’ is inclusive and aims to provide greater opportunities to the decree-holder for execution.

Powers of the transferor court

On passing of a decree and transfer of it to another court of competent jurisdiction, the transferor court ceases to have jurisdiction over that decree and only a transferee court can entertain an application for execution.

Powers of the transferee court

As per Order 21 Rule 8 of the CPC, if a decree under the provisions of Section 39 has been sent for execution to another district, it can be executed by either the district court to which it was transferred or by a subordinate court which has the necessary jurisdiction, to which the district court may refer it.  As per Section 42, the Court to which a decree has been sent for execution has the same powers and authority in the execution of such decree as it that Court itself had passed the decree.

The Court has the authority to punish the individuals who obstruct the execution of a decree. This power shall be exercised by the court as if the decree had been passed by it. The primary intent of the transferee court having these powers is to guarantee that the judgment debtor makes the payment, or do what he is obligated to do as per the decree. The Court has the following powers –

  1. Section 39 permits for the decree to be sent to another Court for execution
  2. The Court has the power, as per Section 50, to enforce the execution of a decree against the legal representative of the deceased judgment debtor.
  3. To order the attachment of a decree.

However, the court to which a decree is transferred will not have the authority to order execution at the instance of the court which sent the decree for execution. Nor does the court to which a decree is transferred have the power to grant leave to execute a decree passed against a firm or company, against any person, unless permitted as per Rule 50 of order XXI of Civil procedure Code.

In the case of Ramanna v. Nalaappa Raju[3], the facts were as such – the first court passed the decree and transferred the territorial jurisdiction to the second court. In these circumstances, it is established in law that the first court has the jurisdiction to deal with the application for execution of that specific decree but the first court must transfer the application for execution to the second court, having the jurisdiction.

The question of law, in this case, was whether the second court has the jurisdiction to deal with an application for execution if the first court has not committed the formalities of transfer for the execution application. The Supreme Court did not give a clear answer to this question but held that the bar to jurisdiction may be waived.

On one hand, in the case of Gowrammal v. Ungappa Gouder[4], the Court stated that the second court cannot deal with the application for execution until it has been transferred formally by the first court. On the other hand, a contrary judgment was passed in the case of Kasturi Rao v. Mehar Singh[5], as the court held that the second court may entertain the execution application even if the first court has not made a transfer of the application. These two judgments are contrary in nature.

Powers of the Executing Court

The application for execution of the decree can be submitted orally or written. The Court has two options – either to select a mode of execution as per its own discretion, or as per what has been prayed for by the decree-holder.

Execution is the implementation, enforcement, or giving effect to an order or a judgment passed by the court of justice. The provisions contained in Order 21 enclose various situations and provide effective remedies to the judgment-debtors, claimant objectors and third parties apart from the decree-holder.

The Code also safeguards the rights of judgment-debtors. The Code includes provisions for arrest, detention of the judgment-debtor, delivery of possession, attachment of the property, by sale, partition, the appointment of receiver and payment of money for the execution of a decree, thereby rendering the provisions capable of providing relief to an aggrieved party.

Execution proceedings and Judicial Precedents

In the case of Ghan Shyam Das v. Anant Kumar Sinha[6], the Apex Court, while dealing with provisions of the code that refer to execution of orders and decree, stated that the Civil Procedure Code contains elaborate provisions that deal with questions of execution of a decree in all aspects.

The Court also stated that the provisions of Order 21 supplied reasoned remedies to judgment-debtors, decree-holders and claimant objectors. However, in cases where provisions of Order 21 are not in the capacity to provide relief, adequate measures, or appropriate time to the aggrieved party, the aggrieved party can file a regular suit in the civil court. The Court also observed that the judicial quality of remedy under the Civil Procedure Code is superior to other statutes and that the judges are expected to do better as they are entrusted with the administration of justice.

In a recent judgment by the Jammu and Kashmir High Court, it was held that it is the prerogative of the Executing Court to amend any discrepancies in order to make a decree executable. In this matter of Suram Singh v. Lal Chand[7], it was held that the Executing Court has invalidated, for all intents and purposes, the judgment declaring Decree Holder as owner in possession of the suit, in respect of which the Decree Holder had applied for execution when the Court dismissed the execution petition.

Even if one considers that the application was not strictly in compliance with the requirements of Order 21 Rule 23 of the Civil Procedure Code 1908, the Court should still have instructed the Decree Holder to seek appropriate relief. The Court was not right in dismissing the application without providing the Decree Holder with an opportunity to file a new application for execution seeking appropriate relief.

As seen in the matter of Pratibha Singh v. Shanti Devi Prasad[8], the Apex Court stated that the executing Court can rectify the decree as per Section 152 of the Civil Procedure Code, in order to make the decree executable. The Court held that a decree of a competent Court must not, as far as possible, be allowed to be defeated only due to accidental slip or emotions. Since the Judgment Debtor had not challenged it, the decree had become final. In this case, the Executing Court had a duty to correct the decree as per Section 152 CPC so that it does cause any disputes.

In a 2019 judgment, Orissa High Court said that Order 21 Rule 29 CPC cannot come to the rescue unless sufficient cause is presented in order to stay the execution case. This was the case of Dhoba Moharana v. Lili Moharana,[9] where the Court stated that the filing of another suit cannot be a ground to stay the execution case.

The court held that it was unfair and unjust to deprive the decree-holder in this regard. In a situation where the party has relied on undue influence, misrepresentation, fraud, deceit, willful default or breach of trust, in which particulars are necessary, those particulars shall be mentioned in the pleading, as per Order 6 Rule 4 CPC.

Limitations of the Executing Court

As per the case of VD Modi v. RA Rehman[10], a court executing a decree is bound to take the decree as the court finds it. The court does not have the authority to deal with any objection that the decree is incorrect, either on law or on facts. The reasoning behind this is that unless the decree is set aside by the requisite proceedings in appeal or revision, that decree, even if incorrect, is binding between the parties.

The court must see the degree as it is, and instead of amending or rectifying it, the court has to execute the decree as per the terms therein. This was established through the case of Mangi Lal vs. State of Madhya Pradesh[11].

Similarly, in the matter of State Bank of Travancore v. Indexport Registered[12], it was held that the court cannot look into the accuracy or legality of the directions of the decree. However, it should be noted that, in the case of Janendra Mohan v. Rabindra Nath[13], that if the court which passed the decree did not have the necessary jurisdiction, then the decree cannot be executed at all.

Considering this question of law, the Supreme Court held that a decree that has been passed with a court that lacked the jurisdiction is invalid. This was stated in the case of Kiran Singh v. Chaman Paswan[14], where the Court went on to say that the nullity of that decree could be established at any point when that decree-holder attempts to seek execution.

Certification

Section 41 speaks with reference to the result of execution proceedings to be certified. The Court to which the decree has been sent for execution has to certify the Court which had passed that decree, regarding the execution.

The court which passed the decree must be certified. In the case of Inderchand v. Baansropan[15], it was held that the

the preponderance of judicial authority appears to be in favor of the view that the transferee Court in executing the decree transferred to it for execution has to do so in accordance with the law of procedure obtaining in that Court, but has to determine the rights and liabilities of the parties in accordance with the substantive law obtaining in the Court which passed the decree, that is to say, the transferor Court’

In the case of Basheer Ahmad v. Padmanabha[16], it was said that the Court has no authority to issue a certificate under Section 41 unless the execution case is pending before said court. The certificate must be issued under Section 41 only if the transferee court has executed the decree.  In the case of Prahlad v. Thakur[17], the court observed that if the transferee court has been unable to execute the decree, it should certify the circumstances and reasoning to explain why the decree has not been executed.

It is crucial to understand that certification is a judicial process and not an administrative function.  In the case of Shimoga Oil Mills v. Radhakrishna Oil Mills[18], the court held that the simple act of sending a copy of the dismissal order without explaining the reasoning behind the dismissal is not in accordance with Section 41 of the CPC.

Conclusion

The powers of the Executing Court are necessary for justice to be dispensed to the affected parties, in a rightful manner. In the absence of the executing court having certain authority, the judgment debtor cannot be compelled or enforced to perform or pay, as per the requirements of the decree. This will hinder the decree-holder from attaining the result of his litigation, and obtain what he is legally entitled to.


[1] Muhammad v. Tikamchand, (1925) LR 47 AII 57, 58, 85 IC 746

[2] Kasturi Rao v. Mehar Singh, AIR 1959 Punj 350

[3] Ramanna v. Nallappa Raju, AIR 1956 SC 87

[4] Gowrammal v. Ungappa Gouder, AIR 1968 Mad 90

[5] Supra, note 2

[6] Ghan Shyam Das v. Anant Kumar Sinha, AIR 1991 SC 2251

[7] Suram Singh v. Lal Chand, CR. No. 26 of 2018

[8] Pratibha Singh v. Shanti Devi Prasad, (2003) 2 SCC 330 

[9] Dhoba Moharana v. Lili Moharana, 2019 SCC OnLine Ori 164

[10] VD Modi v. RA Rehman, AIR 1970 SC 1975

[11] Mangi Lal v. State of Madhya Pradesh,  MANU/MP/0841/2015

[12] State Bank of Travancore v. Indexport Registered, AIR 1992 SC 1750

[13] Janendra Mohan v. Rabindra Nath, AIR 1993 PC 61

[14] Kiran Singh v. Chaman, AIR 1954 SC 340

[15] Inderchand v. Baansropan, AIR 1948 26 Pat 37

[16] Basheer Ahmad v. Padmanabha, AIR 1953 Mys 37

[17] Prahlad v. Thakur, AIR 1951 Pat 149

[18] Shimoga Oil Mills v. Radhakrishna Oil Mills, AIR 1969 Pat 263


  1. Transfer of Decrees for Execution
  2. Civil Procedure Code
Author: Sheen Kaul

She is a LLB student at OP Jindal Global University, with a degree in Political Science Honours from Delhi University and a passion for legal journalism.

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